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LAW REPORT: Barrister was right not to pursue weak claim

McFarlane v Wilkinson and another; Hegarty v EE Caledonia Ltd; Court of Appeal (Lord Justice Saville, Lord Justice Hutchison, Lord Justice Brooke) 5 February 1997

A barrister's failure to plead allegations which had no realistic prospect of success at trial, but which might influence the opposing party's approach to the offer of settlement, could not be categorised as negligent.

The Court of Appeal allowed an appeal by Nigel Wilkinson QC and Anna Guggenheim, of counsel, against the decision of Mr Justice Rix on 26 July 1995 not to strike out claims against them of professional negligence in respect of their conduct of an action by the plaintiff, Francis McFarlane, against EE Caledonia Ltd.

The court at the same time dismissed an appeal by another plaintiff, William Hegarty, against a preliminary ruling by Mr Justice Popplewell, on 1 December 1995, that Mr Hegarty was not owed any relevant common law or statutory duty by the defendants, EE Caledonia Ltd.

Both actions arose out of the Piper Alpha oilrig disaster in July 1988, in which 164 men died and many suffered serious injuries in a series of explosions on the rig. Both plaintiffs claimed to have suffered psychiatric injury as a result of witnessing the disaster at close hand. They were employed as painters on the rig during the day and at night were housed on the MV Tharos, which was lying about 550 metres away.

Miss Guggenheim and Mr Wilkinson were instructed to act for Mr McFarlane. His claim against Caledonia, pleaded only in negligence, succeeded at first instance but was rejected by the Court of Appeal ([1994] 2 All ER 1). Mr McFarlane subsequently sued the barristers for negligence in failing also to plead a claim based on breach of statutory duty. The duty relied on was that contained in reg 32 of the Offshore Installations (Operational Safety Health and Welfare) Regulations 1976 (SI 1019), which provided:

(3) It shall be the duty of every person while on or near an offshore installation (a) not to do anything likely to endanger the safety or health of

himself or other persons on or near

the installation or to render unsafe any equipment used on or near it.

Rupert Jackson QC and Roger Stewart (Reynolds Porter Chamberlain) for the barristers; Benet Hytner QC and Paul Lonergan (Evill & Coleman) for Mr McFarlane; Christopher Gardner QC and Jonathan Waite (Levinson Gray) for Mr Hegarty; Adrian Hamilton QC and Alistair Schaff (Ince & Co) for Caledonia.

Lord Justice Brooke said that a claim based on breach of statutory duty, if a good one, would with one bound free the plaintiffs from the control mechanisms currently imposed on the claims of "secondary victims" (i.e. those witnessing rather than directly involved in disasters). If the plaintiffs came within the regulation, then it imposed strict liability.

But the mere fact that a breach of a statutory duty caused the plaintiff's injury, on the application of the "but for" test or any similar test, was not sufficient. The plaintiff must fall within the class of persons the statute was intended to protect.

Those near the installation when the breach occurred only qualified for protection under reg 32 if the breach was "likely to endanger" them, ie that it was probably that it would. To succeed, the plaintiff must satisfy the court that a likely, not merely foreseeable, outcome of the breach of duty was that the mental health of someone on a rescue vessel more than 100 metres away would be impaired.

Miss Guggenheim had been correct in concluding that a plea of breach of statutory duty added nothing to the plea in negligence and it was absurd to consider that she could be liable in negligence for exercising her judgment in that way.

No doubt some litigants achieved favourable settlements or judgments which they would not have obtained had the law been applied correctly, because counsel had included some matter in the pleadings which, though unlikely to succeed at trial, was reasonably arguable. But it would be quite wrong to conclude that barristers who decided not to include such pleas were ipso facto negligent.